CA Unpub Decisions

Plaintiffs Isaka Investments, LTD. (Isaka), Sand Hill Capital International, Inc. (Sand Hill), and Richbourg Financial, LTD. (Richbourg Financial) (collectively, Plaintiffs) appeal from a judgment entered in favor of Defendants Hythiam, Inc. (Hythiam), Reserva, LLC (Reserva) and Terren S. Peizer (Peizer) (collectively, Defendants) after the sustaining of a demurrer and two bench trials.
Plaintiffs initiated this action in August 2006, claiming standing to sue as alleged shareholders and creditors of Xino Corporation (Xino). Plaintiffs principally sought to set aside an alleged fraudulent transfer whereby Hythiam acquired most of Xino’s assets at a foreclosure sale stemming from a loan transaction between Xino and Peizer’s company, Reserva. Plaintiffs also alleged Reserva breached a contract connected to the foreclosure sale that required Reserva to cause Hythiam to transfer 360,000 shares of Hythiam common stock to Xino in exchange for Xino obtaining releases from its creditors. Reserva and Hythiam claimed Xino breached this obligation by failing to obtain Plaintiffs’ releases. In their initial complaint, Plaintiffs asserted derivative claims on behalf of Xino, and also named Xino, Xino’s director Michael Hinton (Hinton) and Xino’s former officer Joseph Dunn (Dunn) as defendants.
The principal issues in this appeal concern the interpretation of two settlement agreements and the effect of those agreements on Plaintiffs’ standing to sue Defendants. In 2007, after Plaintiffs filed their second amended complaint, Xino and Hythiam entered into a settlement agreement (the Xino/Hythiam Agreement) whereby Hythiam agreed to deliver a total of 310,000 shares of its common stock to Xino, notwithstanding Xino’s alleged failure to obtain all requisite creditor releases, and Xino agreed to release all claims against Hythiam, its “officers, directors, [and] shareholders” arising through the date of the agreement. At the time, Reserva was Hythiam’s largest shareholder and Peizer was an officer and director of Hythiam.
In 2009, Plaintiffs entered into a settlement agreement with Xino, Hinton and Dunn (the Plaintiff/Xino Agreement) whereby Xino assigned all “claims alleged by Plaintiffs . . . against Hythiam, Reserva and Terren Peizer” to Plaintiffs and Plaintiffs agreed that debts owed by Xino to Plaintiffs would be “non-recourse as to Xino’s current and future assets.”
In 2011, Plaintiffs filed the operative fourth amended complaint. In their capacity as Xino’s creditors, Plaintiffs asserted a cause of action to set aside the alleged fraudulent transfer of Xino’s assets to Hythiam. In their capacity as Xino’s assignees, Plaintiffs asserted claims for breach of fiduciary duty, conversion, fraud, breach of contract, unfair business practices, and interference with contractual relations and prospective business advantage.

Following a jury trial, defendant Rudy A. Cortez was convicted of 23 counts of forcible rape, forcible oral copulation, and forcible sodomy, and five counts of kidnapping to commit another crime.[1] As to each forcible sex crime, the jury found true the special allegations that subjected defendant to the “One Strike” law.[2] (§ 667.61.) Defendant received a sentence of 600 years to life under that law.[3]
In this appeal from the judgment, defendant raises issues of insufficient evidence, instructional error, failure to instruct on lesser included offenses, improper admission of evidence, and cruel and unusual punishment. Although we reject those contentions, we modify the judgment to correct the sentencing errors raised by the Attorney General.

Pursuant to a plea bargain negotiated by counsel, defendants Jennifer DeJongh and George DeJongh pled nolo contendere to several counts of child custody deprivation. (§ 278.5, subd. (a).)[1] The trial court, as part of the plea bargain, issued a certificate of probable cause to permit defendants to appeal its denial of their common law motion to dismiss. In this appeal, defendants attempt to pursue that contention. We do not reach its merits because we conclude that the contention does not survive their pleas. Because defendants’ pleas were, in part, based upon the trial court’s illusory promise that they could prosecute this appeal, we reverse the judgments and remand the case to the trial court to permit defendants to withdraw their pleas.

A juvenile against whom a Welfare and Institutions Code section 602 petition (petition) alleging forcible rape was sustained, contends the juvenile court committed reversible error by excluding evidence of the victim’s mental health history, which he contends was relevant to the victim’s credibility, a pivotal issue at the adjudication. The juvenile also asserts that there is insufficient evidence to sustain the petition, that the court erroneously informed him he had committed a strike offense, and that it erred in setting a maximum term of confinement. We will remand with an order to modify the order of wardship to strike the maximum term of confinement and, in all other respects, affirm.

Leticia H. (Mother) appeals from the juvenile court’s jurisdiction and disposition orders declaring her three minor children dependents of the court pursuant to Welfare and Institutions Code[1] section 300, subdivision (b), removing them from Mother’s custody, and placing them in the home of their adult half-sister subject to court supervision. Mother argues that the evidence was insufficient to support the jurisdictional findings as to all three children. She also asserts that the disposition order removing the two younger children, Mia and Miriam, from her custody was not supported by clear and convincing evidence that there was a substantial danger to the children if they were returned to Mother’s care and there were no other reasonable means of protecting them from harm. We affirm.

Appellants Robert C. Burlison, Jr. and his firm, Burlison & Luostari (B&L), appeal a judgment rendered in favor of former clients respondents Charles Pierson and Donald and Ani Hovanesian. The trial court found that appellants committed legal malpractice resulting in damage to Pierson in the amount of $168,000, representing a judgment for attorney fees awarded to the defendants in a prior breach of contract lawsuit to which Pierson had been improperly added as a plaintiff. The court further found that the Hovanesians were owed $40,000 in settlement funds recovered in the prior litigation. Although appellants presented evidence that the Hovanesians had not fully paid for all legal services rendered during the prior litigation under a retainer agreement with B&L, the court concluded that appellants were entitled to no offset because the retainer agreement included a provision permitting B&L to assert an improper lien over funds recovered in the prior litigation. We conclude that despite the invalidity of the lien provision, B&L was not barred from recovering for breach of contract for services rendered under the retainer agreement. We therefore remand for determination of the amount owed B&L, if any, under the evidence presented at trial. We otherwise affirm.

Jesus Knox, a state prison inmate, sued three members of the prison staff for violating prison administrative regulations and for discriminating against him on the basis of sex, race and mental disability in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) He appeals from the trial court's order sustaining respondents' demurrer without leave to amend.[1] We affirm.

Defendant and appellant Jesse Hernandez appeals from his conviction of receiving stolen property. He contends it was error to deny: (1) his Penal Code section 1538.5 motion and (2) his Pitchess motion.[1] We affirm.

Andrew Enriquez appeals from a judgment following his conviction by jury of corporal injury to a spouse/cohabitant (Pen. Code, § 273.5),[1] and assault with a deadly weapon (§ 245, subd. (a)(1)), with special findings that he inflicted great bodily injury
(§ 12022.7, subd. (e)), and used a deadly weapon (§ 12022, subd. (b)(1)). Appellant admitted a prior conviction and three prison term enhancements (§§ 273.5, subd. (e), 667.5, subd. (b)), and was sentenced to a total of 14 years in state prison. Appellant contends the trial court erred by providing the jury with only a portion of the written instructions on propensity evidence and assault with a deadly weapon. We affirm.

Appellant Maggie B. Ward appeals from the judgment entered in a marital dissolution action between her and respondent Jesse E. Ward, Jr.[1] On appeal, Maggie argues that the trial court erred in (1) awarding certain real property to Jesse as his sole and separate property, (2) awarding all rights and benefits in an Exxon Mobil pension plan to Jesse as his sole and separate property, and (3) failing to award certain furniture and furnishings in the marital residence to Maggie as her sole and separate property. For the reasons set forth below, we affirm the judgment without prejudice to Maggie’s right to seek further relief in the trial court.

A jury found defendant and appellant Anthony Knowles (defendant) guilty of, inter alia, second degree robbery and false imprisonment, and the trial court sentenced him to 103 years, four months, to life in prison. On appeal, defendant contends that the trial court abused its discretion when it relieved his appointed counsel of choice and instead appointed counsel from an indigent criminal defense panel. Defendant also contends that he received ineffective assistance of counsel because his trial counsel, after successfully excluding gang evidence, elicited answers from a witness during impeachment that “opened the door” to the prosecution’s introduction of prejudicial gang evidence.
We hold that because the record does not affirmatively show that the trial court abused its discretion when it entered the order relieving defendant’s appointed counsel of choice, we affirm that order. We further hold that counsel’s apparent tactical choice to impeach a key prosecution witness with inconsistent statements did not constitute ineffective assistance of counsel. We therefore affirm the judgment of conviction.

Stanley Robert West appeals his conviction, by jury, of numerous methamphetamine and firearm possession offenses. He contends the trial court should have stayed, pursuant to Penal Code section 654[1], a concurrent term of three years imposed for one of the firearm offenses, and that the trial court improperly used the same factors to impose an upper term sentence and to impose consecutive terms. We affirm.

Andre McClelland appeals from his conviction, following a jury trial, of second degree robbery. He contends (1) there was insufficient evidence to support the gang enhancement, (2) the trial court erred in allowing a gang expert to give opinions unsupported by evidence presented at trial, and (3) he received ineffective assistance of counsel. Finding no error, we affirm.

Dennis Guzman appeals the judgment following a jury trial in which he was found guilty of two counts of assault with a semiautomatic firearm, with findings of a personal use of a firearm (Pen. Code, §§ 245, subd. (b), 12022.5, subd. (a); counts 3 and 4),[1] and of one count of unlawfully carrying a loaded firearm (§ 12031, subd. a)(1); count 5). [2]
At sentencing, the trial court selected count 4, assault with a semiautomatic firearm, as the base term. It imposed the middle term of six years, enhanced by an upper term of 10 years for the firearm use enhancement, a total of 16 years in state prison. It then imposed concurrent terms of 16 years for the count 3 assault with a semiautomatic firearm, enhanced with a 10-year upper term for the firearm use, and of two years for count 5, carrying a loaded firearm, the latter of which was stayed pursuant to section 654.